Jacob v. Waters

The Chancellor. The first objection to the decree of the 8tli of October, 1813, for costs, was, that the question of costs was not reserved in the decree of the 31st of May preceding, and that as the decree was silent as to costs, and was a final decree, they were gone or waived, and could not afterwards be awarded, unless on application for a rehearing, • and for opening the decree, which was not attempted. I have no doubt that the decree of May, 1813, is to be regarded as the final decree in the cause. It was made upon the coming in of the master’s report, ascertaining the lands to be conveyed, and the balance to be previously paid. It was the final end and closing of the controversy, and was analogous to a final, as contradistinguished from an interlocutory, judgment at law. The decree of October, 1808, cannot be so regarded, for though the right to a specific performance was declared generally, yet the extent of that right, and the conditions upon which it was to depend, were not ascertained. The plain reason of the thing, the obvious meaning, of the term, and the definitions in the books of practice, all concur to show that the decree of the 31st of May, 1813, and not the decree of the 27th of October, 1808, was the final decree in the cause. (1 Har. Prac. 622.) Being a final decree, and being silent as to costs, they were undoubtedly lost; as much so as if they were omitted, to be awarded, and incorporated in a final judgment at law. This is the settled rule; and Lord Norlhington, in the case of Herle v. Greenbank, (1 Dickens, 370.,) said, that even [89] interest is lost, unless it be reserved by the decree on hearing the cause on the coming in of the master’s report. 2. But even if this technical objection did not exist, it is contended, that as Ezekiel Travis died as late as the 13th of August, 1812, but before any decree of costs was made, the right to costs became extinct by his death; and the rule, at law and equity is said to be the same in such cases, and that the costs die with the person. (Lloyd v. Powis, Dickens, 16. 2 Ves. 580. and 461. White v. Hayward. Hall v. Smith, 1 Bro. 438.) I have examined the books on this point, and have not met with a case allowing costs, under such circumstances, to the representatives of the party. The general rule is even more rigorous than this, for if the party die before costs be taxed, though they be decreed, they are gone. (2 Ves. 461.) Lord Hardwicke, in Kemp v. Mackrell, (2 Ves. 580. 3 Atk. 811. S. C.,) said, that this, was a hard rule, as it turned on the distinction, whether the costs were taxed or not, and the right was as certain before taxation as after ; and accordingly, in Morgan v. Scudamore, (3 Ves. jun. 195.,) the Chancellor established the rule, that where the plaintiff dies after a decree for costs, and before taxation, they may be recovered by his representatives, by a decree for revivor. The same principle had been admitted and acted upon by Lord Hardwicke, in Blower v. Morrets, (3 Atk. 772.) The only point, in all these cases, was, whether costs already decreed, but not taxed before the death of the party, were recoverable ; but the question is not so much as agitated any where, whether there be any ground for a claim for costs if the party die before they have even been decreed or considered. 3. This objection, therefore, is decisive as to the costs that had accrued in the lifetime ofEzekiel Travis: But if this difficulty was not in the way, there would still be another and a third difficulty to be surmounted, and thatis, that the personal representatives of Ezekiel Travis, who, if any, would have [90] been the persons entitled to these costs, are not before the court. The bill of revivor is by the heirs and devisees, in the capacity of heirs and devisees ; and although two out of ten plaintiffs are stated in the bill of revivor to be executors of Travis, yet they are not alleged to have proved the will, or to have taken upon themselves the trust, nor have they revived the suit in that capacity; and we canonly know them in the character in which they appear before the court. (2 Dickens, 768. 3 Johns. Rep. 552.) For these reasons, and upon either of the grounds I have suggested, I am of opinion that the plaintiffs are not entitled to a decree for the costs that had accrued in the lifetime of Ezekiel Travis, and, for the reason first mentioned, they are not entitled to the costs that have accrued since. Upon a view of the whole merits of this controversy, I do not think there is any cause to regret the application and operation of the general rule. The parties to the original contract,and which was the source of all this long and expensive litigation, were both in default, in slumbering for many years over the non-execution of the contract, and not calling for its prompt performance, nor doing all that was incumbent on each party respectively to do, to entitle him to a fulfilment. The tendency of such delays, is always to obscure the truth and certainty of transactions, and to render the performance doubtful and difficult. It is consonant to the dictates of justice and good policy, that each party should be made to feel the inconvenience of such neglect, defaults, and delay, by being subjected to the payment of his own costs ; and this has frequently been the course of- the court in such cases. (Radcliffe v. Warrington, 12 Ves. 335. Wynne v. Morgan, 7 Ves. 202.) Costs denied, (a.) Footnotes [(a.)] Affirmed, on appeal, March 27th, 1815, vide 12 Johns. Rep. 500.